Handling Resident Misbehavior

By Elliot H. Berton, Esq.

A community association resident is acting outrageously.  Complaints are flooding in to management and the Board.  You’ve demanded that the resident behave, but the communications have been ignored and the misconduct continues. What is to be done?

Many times the resident’s behavior is so outrageous (e.g. firing a gun inside a unit, wandering common areas in underwear, consistently badgering other residents) that there are no specific rules that may apply to the conduct.  Sometimes the conduct may simply constitute too much of an otherwise permissible activity (e.g. loud music at multiple parties, excessive smoking in permitted areas, overwhelming amount of holiday decorations).  In such instances, associations may have to choose between taking no action or relying upon generic rules that regulate or control “nuisances” or conduct that “unreasonably interferes” with the use and enjoyment of homes within the community.

In deciding what to do, it is important to recognize that the prospects for success in Court are often enhanced if the association can demonstrate that the owner or resident violated a specific covenant or rule which affects the health and safety of others or may have involved a trespass upon the community’s common areas.  Generally, our Courts tend to be less sympathetic to the concerns raised by an association, and in turn, less likely to issue enforcement orders, without reasonably clear proof that the resident’s alleged misbehavior falls within one or more of the rules or restrictive covenants that the association has the authority to enforce.

Moreover, associations have to be cognizant of the fact that rules enforcement litigation, especially relating to behavioral issues, is often time consuming and expensive.  Such litigation may also give rise to an owner’s counterclaim against the association.  In a recent case that was pending for years, Morris v. West Hayden Estates First Addition Homeowners Association, 104 F.4^th 1128 (9^th Cir. 2024), a Federal Court found that an HOA’s attempt to stop an owner who staged a five-day Christmas event with actors and singers performing on common areas without permission may have created a “hostile environment” toward the owner’s religious expression.

Unless the resident’s behavior may be creating a situation that merits immediate court intervention, one enforcement option available to associations is to impose fines against the offending unit owner.  Section 3302(a)(11) of our Uniform Condominium Act and Section 5302(a)(11) of our Uniform Planned Community Act authorize associations to levy fines for violations after “notice and an opportunity to be heard.”  If the fines are properly levied but remain unpaid, the association may pursue a collection action to recover the fines and use that judicial proceeding as a method to secure rules compliance and control behavioral misconduct.  Both of the above Acts also permit associations to recover their attorneys’ fees incident to such a collection action. (See, Sections 3315(a) and 5315(a) of the respective statutes.)

Of course, the goal for an association acting by and through its board, is to bring about a negotiated resolution with the unruly resident, if at all possible, without resorting to the judicial remedies available to the association.  In some instances, educating the offending unit owner of the applicable statutory remedies, including the imposition of fines and attorneys’ fees, may trigger a more fruitful dialogue that leads to a successful outcome.

In community associations, few issues are more challenging than addressing resident misbehavior.  Early consultation with the association’s legal counsel when such situations arise is often the key to achieving a practical, beneficial resolution.

Elliot H. Berton focuses his practice on the protection of condominium and homeowners’ associations in state and bankruptcy courts. Drawing on his extensive experience representing banks, financial service companies and other creditors, he advises community association clients on negotiation and documentation of loans, service and other association contracts, assessment recoveries and other financial issues. Elliot also assists associations with transition from declarant control, operational issues, governing document amendments and interpretation, and defense litigation. For more information, contact Elliot at eberton@gawthrop.com or 610-889-0700.